VII. SENTENCING CONSIDERATIONS

  1. The Accused has been found individually responsible pursuant to Article 7(1 ) for aiding and abetting:

    a) Count 1 – persecution as a crime against humanity (based upon imprisonment and inhumane acts relating to living conditions).1497

    b) Count 15 - cruel treatment as a violation of the laws or customs of war (based upon living conditions).

  2. The Accused has also been found responsible as a superior pursuant to Article  7(3) for:

    a) Count 1 – persecution as a crime against humanity (based upon beatings).1498

    b) Count 5 - inhumane acts as a crime against humanity (based upon beatings).1499

    c) Count 7 - cruel treatment as a violation of the laws or customs of war (based upon beatings).

  3. The Accused has been found not guilty under either head of responsibility for the offences of:

    a) Count 2 – torture as a crime against humanity.

    b) Count 4 – torture as a violation of the laws or customs of war.

    c) Count 8 – murder as a crime against humanity.

    d) Count 10 – murder as a violation of the laws or customs of war.

    e) Count 16 – enslavement as a crime against humanity.

    f) Count 18 – slavery as a violation of the laws or customs of war.

  4. Cumulative convictions (convictions for different crimes against international humanitarian law based on the same conduct) are permissible only if each crime involved has a materially distinct element not contained in the other. An element is materially distinct from another if it requires proof of a fact not required by the other. Where this test is not met, the Chamber must enter the conviction for the more specific crime, being the crime with an additional materially distinct element.1500

  5. Convictions for the crimes enumerated under Articles 3 and 5 based on the same conduct are permissible as each contains a materially distinct element.1501 The materially distinct element required by Article 3 offences is the requirement that there be a close link between the acts of the accused and the armed conflict. That required by Article 5 offences is that the offence be committed within the context of a widespread and systematic attack directed against a civilian population. Applying this test to the present case, convictions for the cruel treatment and persecution charges (pursuant to Articles 3 and 5 respectively) based on the same conduct are permissible and are therefore entered. With respect to convictions for the other charges (pursuant to Article 5), it is clear that neither the crime of imprisonment nor that of inhumane acts contains an element which is materially distinct from the crime of persecution. As persecution requires the materially distinct elements of a discriminatory act and discriminatory intent, it is the more specific provision. A conviction is therefore entered for persecution, but not for imprisonment and inhumane acts, with respect to the relevant conduct found to constitute the persecution charge. Convictions for inhumane acts are entered for those incidents found to constitute acts of inhumane treatment under Article 5 of the Statute but which have not also been established as persecution under that Article.

  6. The Trial Chamber imposes a single sentence of imprisonment reflecting the totality of the criminal conduct of the Accused in accordance with Articles 23(1 )1502 and 24(1)1503 of the Statute and Rules 101(A)1504 and 87(C).1505 The sentence is seven and a half years of imprisonment. This section of the judgment explains the considerations which led the Trial Chamber to impose that sentence.

  7. As a preliminary matter, Article 24(1) of the Statute provides, inter alia, that in determining the term of imprisonment the Trial Chamber “shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia”.1506 Although the Trial Chamber is not bound to follow the sentencing practice of the former Yugoslavia,1507 recourse must be had to that sentencing practice as an aid in determining the sentence to be imposed.1508 What is required must go beyond merely reciting the relevant criminal code provisions of the former Yugoslavia; the general sentencing practice of the former Yugoslavia must be considered.1509

  8. Article 41(1) of the SFRY Code requires that consideration be given to:

    […] all the circumstances bearing on the magnitude of the punishment (extenuating and aggravating circumstances), and in particular, the degree of criminal responsibility, the motives from which the act was committed, the past conduct of the offender, his personal situation and his conduct after the commission of the criminal act, as well as other circumstances relating to the personality of the offender.1510

    This Article is generally similar to the sentencing provisions of Article 24(2) of the Statute and Rule 101(B).1511 Article 24(2) of the Statute directs the Trial Chamber to take into account the gravity of the offence and the individual circumstances of the convicted person, while Rule 101(B) directs the Trial Chamber to consider any aggravating circumstances or any mitigating circumstances.

  9. All of the above factors have been taken into account in determining the sentence, but the overriding sentencing obligation considered by the Trial Chamber has been that of fitting the penalty to the individual circumstances of the Accused and to the gravity of the offences for which he has been found responsible.1512 This obligation has been formulated as follows:

    […] (t)he sentences to be imposed must reflect the inherent gravity of the criminal conduct of the accused. The determination of the gravity of the crime requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crime.1513

    Only those matters which were proved beyond reasonable doubt against the Accused have been considered against him in sentencing, including the aggravating factors.1514 The mitigating circumstances taken into account are those which have been established by the Accused on a balance of probabilities.1515

  10. The Trial Chamber has taken cognisance of retribution – interpreted as punishment of an offender for his specific criminal conduct1516– and general deterrence.1517 Both of these general sentencing factors form the backdrop against which the Accused’s sentence has been determined.1518 The remaining “sentencing principles” submitted by the Prosecution to be relevant to the determination of the sentence imposed – incapacitation of the dangerous and rehabilitation1519 – were considered by the Trial Chamber to be of little significance in this jurisdiction.1520

  11. The Trial Chamber has also considered the need for the sentence to reflect the relative significance of the Accused’s role in the broader context of the conflict in the former Yugoslavia.1521 The Trial Chamber does not accept that the Accused played any particularly significant role in the broader context of this conflict. Although he held a fairly senior position in Foca, his crimes were geographically limited and there is no evidence that his specific offences affected other perpetrators of violations of international humanitarian law or other victims of such crimes within that broader context. That said, the Accused has been found responsible for particularly serious offences against particularly vulnerable persons. The crimes continued over a substantial period. The Trial Chamber considered this when determining the gravity of the offences.

  12. The punishment which could have been imposed on the Accused in the former Yugoslavia at the relevant time is dealt with in Article 142(1) (“War crimes against the civilian population”) of the SFRY Criminal Code.1522 It gives effect to the provisions of Geneva Convention IV and the two Additional Protocols, which are incorporated into the jurisdiction of the Tribunal by Article  2 of the Statute.1523 There appears to be no provision of the SFRY Criminal Code giving specific effect to the crimes against humanity enumerated in Article 5 of the Statute, although genocide (a specific category of crimes against humanity) is dealt with in Article 141 of the SFRY Criminal Code.1524

  13. In line with recent Appeals Chamber Judgments, the Trial Chamber has not considered that crimes against humanity should in principle attract a higher sentence than war crimes.1525

  14. The Prosecution has submitted that what it calls an “in personam evaluation ” of the gravity of the crime could or should also concern the effect of that crime on relatives of the immediate victims.1526 The Trial Chamber considers that such effects are irrelevant to the culpability of the offender, and that it would be unfair to consider such effects in determining a sentence.1527 Consideration of the consequences of a crime upon the victim who is directly injured by it is, however, always relevant to the sentencing of the offender. Where such consequences are part of the definition of the offence, they may not be considered as an aggravating circumstance in imposing sentence, but the extent of the long-term physical, psychological and emotional suffering of the immediate victims is relevant to the gravity of the offences.1528

  15. The Accused has been found criminally responsible under two heads of liability. For his participation in the imprisonment of the non-Serb detainees, the Trial Chamber has found that, although the Accused did not intend that the non-Serb detainees be imprisoned, deprived of the necessities of a humane existence, or be subjected to physical and psychological assaults, he knew that this was happening at the KP Dom and he did little to try to prevent it. For these offences, the Trial Chamber has found the Accused guilty of aiding and abetting the cruel treatment and persecution of the non-Serb detainees pursuant to Article 7(1) of the Statute upon the basis that, by his failure to take any action in relation to the offences which he was aware had been committed, he knowingly contributed in a substantial way to the continued maintenance of those those offences by encouragement to the principal offenders.1529 With respect to the beating of the non-Serb detainees established as cruel treatment and as inhumane acts not forming the basis of the persecution charge under Article  5(h) of the Statute, the Trial Chamber has found the Accused criminally responsible as a superior pursuant to Article 7(3) of the Statute. The Accused expressed no regret for the part he played in the commission of these offences, and only insubstantial regret that the offences had taken place.1530

  16. The Trial Chamber considers that the Accused’s aiding and abetting of the cruel treatment and persecution of the detainees is aggravated by the fact that he held the most senior position in the KP Dom. This is a case in which the Accused chose to bury his head in the sand and to ignore the responsibilities and the power which he had as warden of the KP Dom to improve the situation of the non-Serb detainees. The sentence in this case must make it clear to others who (like the Accused) seek to avoid the responsibilities of command which accompany the position which they have accepted that their failure to carry out those responsibilities will still be punished.1531 The extent of that aggravation in the present case must nevertheless be tempered to at least some extent by two possibly countervailing factors.

  17. First, prior to his appointment as warden of the KP Dom, the Accused had been employed as a mathematics teacher for most of his working life. He was not well experienced, and perhaps not well suited, for the task he chose to undertake. He also did not have a particularly strong character, and the expert reports of both the Prosecution and the Defence were agreed that the Accused had a conformist personality.1532 The Accused appears for these reasons to have felt unable to confront the authority of the military or persons of strong character such as deputy warden Savo Todovic. Secondly, unlike other persons who filled roughly similar positions as the Accused did and who have been dealt with by this Tribunal, his participation in these crimes was limited to his aiding and abetting the criminality of others.

  18. The first of these matters may, in some circumstances, constitute a matter in mitigation of sentence. The Trial Chamber does not, however, consider it appropriate in the present case to mitigate the sentence of the Accused on the basis that he is the type of person who did not have the strength of character to challenge what he knew to be criminal behaviour by those over whom he had authority in the KP Dom. The Accused voluntarily accepted this position of authority, and the fact that he may have had difficulties in exercising the authority which that position gave him did not, in the circumstances, mitigate his responsibility. However, both matters to which reference has been made have led the Trial Chamber to place less weight upon the aggravating feature of the Accused’s position as warden than it otherwise would have.

  19. The Prosecution submitted that there were other aggravating circumstances which the Trial Chamber should accept. In relation to some of these matters (such as discriminatory motives and ethnic hatred on the part of the Accused), the Trial Chamber has already stated that it is not satisfied that they have been established in the evidence.1533 Other matters put forward by the Prosecution as aggravating circumstances which have not previously been dealt with by the Trial Chamber are the allegations that the Accused acted primarily for personal gain and out of a desire for social, political and career advancement, and that he was guilty of abuse of his authority.1534 The Trial Chamber is not satisfied that these allegations have been established on the evidence. The Trial Chamber has already taken into account other matters put forward by the Prosecution as aggravating circumstances when it considered the gravity of the offences proved, such as the particular vulnerability of the direct victims, the length of time over which the crimes continued during the Accused’s tenure as warden of the KP Dom, and the extent of the long term physical, psychological and emotional suffering of those victims.1535 The Trial Chamber considers that it would be impermissible double counting to take these matters into account again as matters of aggravation as well.

  20. There was some evidence that, in cases where the Accused was personally approached by individual detainees with particular requests, he did act to help those detainees. There was also some evidence of attempts on the part of the Accused to improve the condition of all detainees by securing more food for the KP Dom. Although these acts on the part of the Accused had limited practical effect upon the welfare of the non-Serb detainees in general, they do mitigate the criminality of the Accused when compared to that of those subordinate to him.

  21. The Trial Chamber has also taken into account that, prior to his appointment as warden at the KP Dom, the Accused was a person of good character and that, since the termination of his appointment as warden of the KP Dom, the Accused returned to his teaching profession without any suggestion of further criminal conduct on his part. The Trial Chamber has also taken into account the Accused’s good conduct in the Detention Unit since his arrest.

  22. Finally, the Trial Chamber has given credit to the Accused for the extent to which his Counsel co-operated with it and with the Prosecution in the efficient conduct of the trial. Counsel were careful not to compromise their obligations to the Accused, but the restriction of the issues which they raised to those issues which were genuinely in dispute enabled the Trial Chamber to complete the trial in much less time than it would otherwise have taken.1536

  23. The Accused submitted that there were three other mitigating circumstances which the Trial Chamber should accept. The first matter was that, as the Indictment against him was sealed,1537 the Accused had no reason to suspect that he had been indicted, and so was unable to surrender himself voluntarily. The Trial Chamber has not taken into account his failure to surrender himself voluntarily as a matter in aggravation. Moreover, the Trial Chamber does not accept the Accused’s explanation for his possession of a false identification card at the time of his arrest,1538 and accordingly does not accept that the Accused would have surrendered himself voluntarily if he had been aware of the existence of the Indictment. The Trial Chamber has treated his non-surrender as neutral. The other two matters put forward by the Accused in mitigation were the expert psychological conclusions that he has a tendency to follow orders or the opinions of others without deep analysis, and that the anxiety from which he suffers when faced with the unfamiliar diminishes his ability to assess correctly the situation in which he finds himself.1539 The Trial Chamber does not consider that either of these conclusions, even if accepted, is a significant matter in mitigation in the circumstances of this case. The first conclusion does not explain the failure of the Accused to act when he should have acted to prevent the continued mistreatment of the detainees, and the second conclusion provides no excuse for his participation in these offences over a long period and when his situation was no longer unfamiliar.

  24. The Appeals Chamber has stressed that the starting point in any consideration of the appropriate sentence is the gravity of the conduct of the accused in the case in question.1540 As discussed earlier,1541 the sentence to be imposed must reflect the inherent gravity of the criminal conduct of the accused, and the determination of that issue requires a consideration of the particular circumstances of the case, as well as of the form and degree of the participation of the accused in the crime.1542 The nature of the actions of others for which the accused is found to be responsible is therefore relevant, but those actions are considered principally by reference to the nature of the accused’s responsibility for them.

  25. In the present case, the actions of others for which the Accused has been found to bear criminal responsibility either individually or as a superior may be described as follows:

    (i) The imprisonment of a vast number of non-Serb civilians, the overwhelming majority of whom were Muslims, including young and elderly, ill, wounded, physically incapacitated and mentally disturbed persons. They were detained for periods ranging from four months to two and a half years. None had been charged with any offence, and their detention was unlawful.1543 Their imprisonment and continued confinement was discriminatory on religious or political grounds.1544

    (ii) These non-Serb civilian detainees were housed in cramped conditions making it impossible for them to move freely, or in some instances, to sleep lying down ;1545 they were isolated from the outside world and denied access to their families;1546 they were subject to deplorable hygienic conditions;1547 they were exposed to the freezing temperatures of winter 1992,1548 and they were fed starvation rations which led the detainees to suffer considerable weight loss ranging from 20 to 40 kilograms.1549 Many of the detainees were denied access to medical care which was available, and those requiring emergency medical attention were not handled with proper care.1550 The non-Serb detainees were also subjected to a psychologically exhausting regime while detained at the KP Dom.1551 They were exposed to the sounds of their fellow detainees being beaten and tortured, leading many to fear that they would be next,1552 and attempts made by the detainees to improve their living conditions were punished harshly with beatings and periods in the isolation cells.1553 As a result of these conditions, the physical and psychological health of many of the non-Serb detainees deteriorated or was destroyed.1554 The substantial cause of the death of one such detainee was the failure to provide access to medical care,1555 and 19 other detainees suffered serious physical and psychological consequences as a result of the living conditions of the KP Dom.1556 Most suffered severe weight loss, many spent periods in hospital after their release, and some still require constant medication and medical care. Nearly all continue to suffer from some form of psychological disorder, including anxiety attacks, sleeplessness, nightmares, depression or other nervous conditions.1557

    (iii) The non-Serb civilian detainees were also systematically beaten and mistreated while detained at the KP Dom by the KP Dom guards, and by soldiers and military police coming from outside the KP Dom, for whose actions he was not responsible but who were permitted to enter the KP Dom in order to mistreat detainees in this way by the guards under the control of the Accused and for whose actions he was responsible.1558 Over fifty of those incidents of beating were sufficient severity as to constitute inhumane acts and cruel treatment.1559 Two further beatings of detainees had been inflicted upon religious or political grounds.

  26. This has led to findings of guilt on the part of the Accused for the crimes of:

    (i) persecution as a crime against humanity based upon –

    (a) imprisonment and inhumane acts (the living conditions), for his individual responsibility, and

    (b) two of the beatings incidents, as a superior;

    (ii) inhumane acts as a crime against humanity based upon the beatings, as a superior ;

    (iii) cruel treatment as a violation of the laws or customs of war based upon the beatings, as a superior; and

    (iv) cruel treatment as a violation of the laws or customs of war based upon the living conditions, for his individual responsibility.

    Subsumed in those findings of guilt of individual responsibility for persecution, but not made the subject of cumulative convictions, are findings that the Accused was individually responsible for imprisonment and inhumane acts as crimes against humanity.

  27. It was conceded by the Prosecution that the Accused had not participated in any of these criminal acts himself, and the Prosecution failed to establish that the Accused joined in the common intent of any joint criminal enterprise that these crimes should be committed. The basis of the individual criminal responsibility of the Accused has been that, throughout the period of approximately 15 months during which he was the warden or acting warden of the KP Dom, he aided and abetted in the commission of these crimes, in that he was aware that these crimes were being carried out, and that, by his failure to take any action as warden in relation to those crimes, he knowingly contributed in a substantial way to the continued maintenance of those offences by encouragement to those who carried them out.1560

  28. The Trial Chamber has given consideration to the importance of consistency in the punishments which are imposed by any particular tribunal, as one of the fundamental elements in any rational and fair system of criminal justice.1561 That is not to suggest that a Trial Chamber is bound to impose the same sentence in two cases simply because the circumstances are generally similar. That would erode the important discretion which every sentencing tribunal must exercise to ensure that the sentence imposed is appropriate to the specific circumstances of the particular case. Nevertheless, in most domestic jurisdictions a range or a pattern of sentences has been built up over the years. A court in such jurisdictions is obliged to have regard to that range or pattern, without being bound by it, in order to ensure that, in the exercise of that discretion, the sentence which it imposes in the particular case does not produce an unjustified disparity which may erode public confidence in the integrity of the administration of criminal justice.1562 No such range or pattern of sentences presently exists in this Tribunal, but with time one will necessarily emerge. At the present time, it is possible for a Trial Chamber to have regard only to those sentences which have been imposed by the Tribunal in generally similar circumstances as to both offences and offenders. It is nevertheless appropriate for the Trial Chamber to do so, provided that it is done with considerable caution.1563

  29. There are only three men already sentenced by the Tribunal who could be said to have been, at least to any significant extent, in circumstances which could be regarded as generally similar to those of Milorad Krnojelac. Those three are Zlatko Aleksovski,1564 Zdravko Mucic1565 and Miroslav Kvocka.1566 Aleksovski and Mucic each held the rank of camp commandant, and Kvocka was a deputy commander who exercised the authority of the commander in his absence. The important similarity of the three cases to the present case relates to the relatively close proximity which the commandant of a prison or a camp has to the actual perpetrators of the crimes committed in those institutions. The circumstances of each of these three cases are nevertheless significantly different in some respects to the circumstances of the present case.

  30. Zlatko Aleksovski was the commander of the Kaonik prison camp for a period of five months.1567 He was found guilty of aiding and abetting the mistreatment of detainees during body searches, the mistreatment of detainees during their interrogation after the escape of a detainee, psychological terror (broadcasting recordings of screams over the public address system at night), and the use of detainees as human shields and for trench digging.1568 He was also found guilty of ordering, instigating and aiding and abetting serious violence regularly inflicted on two individuals, sometimes in his presence.1569 In addition, he was found criminally responsible as a superior for various acts of violence committed by guards inside the prison.1570 The Trial Chamber found that his direct participation in the commission of those crimes was relatively limited, that he only had a secondary role in the totality of crimes established,1571 and that he had been merely a tool in relation to the crimes committed against Bosnian Muslim civilians in the Lašva Valley.1572 The Appeals Chamber pointed out, however, that Aleksovski was a warden who had personally participated in the physical violence against detainees when, by virtue of his rank, he should have taken steps to prevent or punish it; he did more than merely tolerate the crimes as a commander and, by his direct participation, he provided additional encouragement to his subordinates to commit similar crimes.1573 As a commander, he had the authority to prevent such crimes and a duty not to involve himself in them.1574 Aleksovski initially received a sentence which was held by the Appeals Chamber to have been manifestly inadequate.1575 On appeal, he received a sentence of seven years, but this was considerably lower than what the Appeals Chamber thought should have been imposed at trial, by reason of the double jeopardy involved in a prosecution appeal.1576

  31. Zdravko Mucic was the commander of the Celebici camp for approximately seven months. During that period, he exercised de facto authority over the prison-camp, the deputy commander and the guards, and he was responsible for the overall inhumane conditions in the camp.1577 Mucic was found guilty pursuant to Article 7(3) for the wilful killing and murder of nine individuals, for wilfully causing great suffering or serious injury to body or health to, and cruel treatment of, one additional individual, for the torture of six others, for wilfully causing great suffering or serious injury to body or health to, and cruel treatment of, three further individuals and the inhumane and cruel treatment of seven others.1578 The Trial Chamber also found that, by his direct participation in the maintenance of inhumane conditions in the camp, as well as by his failure to prevent or punish the violent acts of his subordinates, he wilfully caused great suffering or serious injury to body or health, and cruel treatment pursuant to Article 7(1).1579 Finally, in the light of his failure to exercise his power as a camp commander to release detainees whom he was aware were unlawfully confined, Mucic was found responsible pursuant to Article 7(1) for unlawful confinement of civilians.1580 With the exception of the inhumane conditions and the unlawful confinement offences, he was not found to have actively participated in any of the offences, but was held responsible for the acts of his subordinates.1581

  32. The Trial Chamber held that Mucic made no effort to prevent or punish the mistreatment of prisoners. Instead, he often left the camp at night, when mistreatment was most likely to occur “in obvious neglect of his duty as commander and the fate of the vulnerable detainees”.1582 He was nevertheless imputed with knowledge of their crimes because, by means of deliberate neglect of his duty to supervise his subordinates, he had enabled them to mistreat detainees.1583 In full awareness of what was happening, he had encouraged the perpetrators by tolerating these conditions over the entire period when he was the commander of the Celebici camp.1584 The Appeals Chamber emphasised the serious effect which this failure of supervision had had by way of encouragement of the commission of crimes by his subordinates.1585 Mucic received a sentence of seven years at trial, but again a prosecution appeal was upheld. The Appeals Chamber indicated that a heavier sentence of around ten years would have been appropriate,1586 but – because of the complications caused by the cumulative convictions which had wrongly been entered – the Appeals Chamber referred the issue of re-sentencing to a new Trial Chamber. The new Trial Chamber imposed a sentence of nine years on Mucic,1587 who has since appealed.

  33. Miroslav Kvocka was deputy commander of the Omarska camp and exercised authority over that camp when its commander was absent.1588 He was found to have been a member of a joint criminal enterprise to commit murder, torture and beating, sexual assault and rape, harassment, humiliation and psychological abuse, and confinement in inhumane conditions. It was accepted by the Trial Chamber that Kvocka did not actively participate in any of those crimes, but it was found that he was aware that serious crimes were being committed and that he was present when some of the crimes were committed, yet he helped to maintain the functioning of the camp, thus allowing the crimes to continue. He was not, however, the architect of the regime which had been instituted. The Trial Chamber declined to find him liable as a commander pursuant to Article 7(3) of the Statute. It is not clear to this Trial Chamber from the judgment how Kvocka was found to have shared the necessary intent for him to be a member of the joint criminal enterprise, rather than merely aiding and abetting it, but the judgment appears to proceed upon the basis that there was evidence that he had that intent. The most significant factor for present purposes in relation to Kvocka’s sentence is that he worked in the Omarska camp for only 17 days. He received a sentence of seven years.1589

  34. This Trial Chamber has, with considerable caution, had regard to the sentences presently imposed upon those three men, bearing in mind the substantial differences in the personal participation by each man in the offences which occurred, the number and seriousness of the underlying incidents upon which the offences were based and the length of time he held the position or exercised the responsibilities of commandant. However, the fact that Mucic and Kvocka have not yet had their cases finally disposed of within the Tribunal is a substantial qualification to the weight to be afforded to the sentences imposed upon them, particularly in relation to Kvocka, who has yet to have any consideration by the Appeals Chamber to his conviction and sentence appeal.

  35. The final matter to which the Trial Chamber has had regard in sentencing is the fact that the Accused, Milorad Krnojelac, is now 62 years of age.

    VIII. DISPOSITION

    A. Sentence

    FOR THE FOREGOING REASONS, having considered all of the evidence and the arguments of the parties, the Statute and the Rules, the Trial Chamber finds, and imposes sentence, as follows.

  36. Milorad Krnojelac is convicted upon the following counts:

    Count 1 – persecution as a crime against humanity (based upon imprisonment, living conditions and beatings), both for his individual responsibility and as a superior.1590

    Count 5 – inhumane acts as a crime against humanity (based upon beatings), as a superior.1591

    Count 7 – cruel treatment as a violation of the laws or customs of war (based upon beatings), as a superior.

    Count 15 – cruel treatment as a violation of the laws or customs of war (based upon living conditions), for his individual responsibility.

  37. Milorad Krnojelac is acquitted upon the following counts:1592

    Count 2 – torture as a violation of the laws or customs of war.

    Count 4 – torture as a crime against humanity.

    Count 8 – murder as a violation of the laws or customs of war.

    Count 10 – murder as a crime against humanity.

    Count 11 - imprisonment as a crime against humanity.1593

    Count 13 – inhumane acts as a crime against humanity (based upon living conditions ).1594

    Count 16 – enslavement as a crime against humanity.

    Count 18 – slavery as a violation of the laws or customs of war.

  38. The Trial Chamber sentences Milorad Krnojelac to a single sentence of imprisonment for seven and a half years.

    B. Credit for Time Served

  39. Milorad Krnojelac was arrested on 15 June 1998, and he has accordingly been in custody now for three years and nine months. He is entitled to credit for that period towards service of the sentence imposed, together with the period he will serve in custody pending a determination by the President pursuant to Rule  103(1) as to the State where the sentence is to be served. He is to remain in custody until such determination is made.

 

Done in English and French, the English text being authoritative.

Dated this the 15th day of March 2002,
At The Hague,
The Netherlands.

_______________________________
Judge David Hunt
Presiding

________________________________
Judge Florence Ndepele Mwachande Mumba

_______________________________
Judge Liu Daqun

[Seal of the Tribunal]

ANNEX I : GLOSSARY OF TERMS

Accused - Milorad Krnojelac

Additional Protocol I - Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 12 December 1977

Additional Protocol II - Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 12 December 1977

Akayesu Trial Judgment - Prosecutor v Akayesu, ICTR-96-4-T, Judgement, 2 Sept 1998

Aleksovski Appeal Judgment - Prosecutor v Alekovski, IT-95-14/1-A, Judgement, 24 Mar 2000

Aleksovski Trial Judgment - Prosecutor v Alekovski, IT-95-14/1-T, Judgement, 25 June 1999

Alad‘a Mosque - The Alad‘a Mosque was the oldest mosque in Foca, located in the Alad ‘a neighbourhood

Bosnia and Herzegovina - Republic of Bosnia and Herzegovina

Blaskic Trial Judgment - Prosecutor v Blaskic, IT-95-14-T, Judgement, 3 Mar 2000

Brdanin and Talic Decision on - Prosecutor v Brdanin and Talic, IT- 99-36-PT Form of Further Amended Indictment, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001

common Article 3 - Article 3 common to the four Geneva Conventions of 1949

Defence - Defence for Milorad Krnojelac

Delalic Appeal Judgment - Prosecutor v Delalic and Others, IT-96-21- A, Judgement, 20 Feb 2001

Delalic Trial Judgment - Prosecutor v Delalic and Others, IT-96-21-T, Judgement, 16 Nov 1998

European Commission - European Commission of Human Rights

European Court - European Court of Human Rights

Ex P, Ex D - Prosecution exhibit, Defence exhibit

FRY - Federal Republic of Yugoslavia

FWS - Witness in this case (Prosecutor v Krnojelac, IT-97-25); see fn  6.

Furundzija Appeal Judgment - Prosecutor v Furundzija, IT-95-17/1-A, Judgement, 21 July 2000

Furundzija Trial Judgment - Prosecutor v Furundzija, IT-95-17/1-T, Judgement, 10 Dec 1998

Geneva Convention III - Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949

Geneva Convention IV - Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949

ICCPR - International Covenant on Civil and Political Rights, 16 Dec 1966

ICJ - International Court of Justice

ICRC - International Committee of the Red Cross

ICRC - Commentary to Geneva Pictet (ed), Commentary: IV Geneva Convention, IV Convention Relative to the Protection of Civilian Persons in Time of War, 1958

ICRC - Commentary on Sandoz et al (eds), Commentary on the Additional Protocols Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987

ICTR - International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994

ICTY, International Tribunal or Tribunal - International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991

ILC - International Law Commission

Indictment - Third Amended Indictment, Prosecutor v Krnojelac, IT-97-25, 25  June 2001

Jelisic Appeal Judgment - Prosecutor v Jelisic, IT-95-10-A, Judgement, 5 July 2001

Jelisic Trial Judgment - Prosecutor v Jelisic, IT-95-10-T, Judgement, 14 Dec 1999

JNA - Yugoslav National Army

Kayishema and Ruzindana Judgment - Prosecutor v Kayishema and Ruzindana, ICTR-95-1-T, Judgement, 21 May 1999

Kordic and Cerkez Trial Judgment - Prosecutor v Kordic and Cerkez, IT -95-14/2-T, Judgement, 26 Feb 2001

KP Dom - Foca Kazneno-Popravni Dom

Krstic Trial Judgment - Prosecutor v Krstic, IT-98-33-T, Judgement, 2 Aug 2001

Kunarac Trial Judgment - Prosecutor v Kunarac and Others, IT-96-23-T & IT-96-23/1-T, Judgement, 22 Feb 2001

Kupreskic Appeal Judgment - Prosecutor v Kupreskic and Others, IT-95-16-A, Appeal Judgement, 23 Oct 2001

Kupreskic Trial Judgment - Prosecutor v Kupreskic and Others, IT-95- 16-T, Judgement, 14 Jan 2000

Kvocka Trial Judgment - Prosecutor v Kvocka and Others, IT-98-30/1-T, Judgement, 2 Nov 2001

Martic Rule 61 Decision - Prosecutor v Martic, IT-95-11-R61, Decision on the review of Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, 8 Mar 1996

Matters not in dispute - Prosecutor’s Submission Related to Rule 65ter (E)( ii) and (iii), 16 Oct 2000

Musema Trial Judgment - Prosecutor v Musema, ICTR-96-13-T, Judgement and Sentence, 27 Jan 2000

Nikolic Rule 61 Decision - Prosecutor v Nikolic a/k/a “Jenki”, IT-94 -2-R61, Decision on the Review of Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, 20 Oct 1995

Nuremberg Charter - Charter of the International Military Tribunal for the Prosecution and Punishment of the German Major War Criminals, Berlin, 6 Oct 1945

Nuremberg Judgment - Judgement of the International Military Tribunal for the Trial of the German Major war Criminals, Nuremberg 30 Sept/1 Oct 1946

Prosecution - Office of the Prosecutor

Prosecution Final Trial Brief - Prosecutor v Krnojelac, IT-97-25-T, Prosecutor’s Final Trial Brief, 13 July 2001

Prosecution Pre-Trial Brief - Prosecutor v Krnojelac, IT-97-25-PT, Prosecutor’s Pre-Trial Brief, 16 Oct 2000

Report of the Secretary-General - Report of the Secretary-General Pursuant to Paragraph  2 of Security Council Resolution 808 (1993), UN Doc S/25704, 3 May 1993

Rome/ICC Statute - Statute of the International Criminal Court, adopted at Rome on 17 July 1998, UN Doc A/CONF. 183/9

Rules - Rules of Procedure and Evidence of the International Tribunal

Rutaganda Trial Judgment - Prosecution v Rutaganda, ICTR–96-3-T, Judgement and Sentence, 6 Dec 1999

SDA - Party for Democratic Action

SDS - Serbian Democratic Party

SFRY - Socialist Federal Republic of Yugoslavia

Statute - Statute of the International Tribunal

T - Transcript of hearing in Prosecutor v Krnojelac, IT-97-25-T

Tadic - Appeal Judgment Prosecutor v Tadic, IT-94-1-A, Judgement, 15  July 1999

Tadic - Sentencing Appeal Judgment Prosecutor v Tadic, IT-94-1-A & IT -94-1-Abis, Judgement in Sentencing Appeals, 26 Jan 2000

Tadic - Jurisdiction Decision Prosecutor v Tadic, IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct 1995

Tadic - Trial Judgment Prosecutor v Tadic, IT-94-1-T, Judgement, 7 May 1997

Tadic - Sentencing Judgment Prosecutor v Tadic, IT-94-1-T, Sentencing Judgment, 14 July 1997.

Todorovic Sentencing Judgment - Prosecutor v Todorovic, IT-95-9/1-S, Sentencing Judgement, 31 July 2001.

Tokyo Charter - Charter of the International Military Tribunal for the Far East, Tokyo, 19 January 1946

Torture Convention - Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984

Tribunals - ICTR + ICTY

VRS - Army of the Serbian Republic of Bosnia and Herzegovina/Republika Srpska

 

ANNEX II – PROCEDURAL BACKGROUND

    A. Pre–trial phase

  1. On 7 June 1997 the Tribunal reviewed and confirmed a sealed indictment against Milorad Krnojelac, and issued a warrant of arrest and an order for surrender.1595

  2. The Accused was detained by SFOR and transferred to the Tribunal on 15 June 1998. A redacted indictment was publicly filed on the same day.1596 On 17 June 1998, the President assigned the case to Trial Chamber II, then composed of Judge Cassese (presiding), Judge May and Judge Mumba.1597 The Accused pleaded not guilty to all counts at his initial appearance on 18 June 1998.

  3. On 16 November 1998, Judge Hunt was assigned to the case, replacing Judge May.1598 Judge Cassese was replaced by Judge Pocar on 1 February 2000,1599 who was in turn replaced by Judge Liu on 3 April 2000. 1600

  4. On 24 February 1999, the Trial Chamber directed the Prosecution to amend the indictment, following a motion challenging the form of the indictment by the Defence.1601 The Prosecution submitted the amended indictment on 25 May 1999.1602 Following another Defence motion challenging the form of the indictment and pursuant to a decision of the Trial Chamber of 11 February 2000,1603 the Prosecution submitted a second amended indictment on 2 March 2000.1604 The Trial Chamber partially upheld a Defence preliminary motion challenging the form of the second amended indictment on 11 May 2000.1605 The second amended indictment charged persecution, imprisonment, inhumane acts, enslavement, torture and murder as crimes against humanity and cruel treatment, slavery, torture and murder as violations of the laws and customs of war. Counts which were charged as grave breaches were withdrawn on 27 October 2000.1606

  5. Pre-trial briefs were filed by the Prosecution on 16 October 2000,1607 and by the Defence on 21 October 2000.1608

  6. Pursuant to Rule 75, various protective measures for witnesses were ordered by the Trial Chamber, including the use of pseudonyms, screening from the public and facial and voice distortion.1609

    B. The trial phase

  7. The trial started on 30 October 2000. The Prosecution case lasted until 4 April 2001; the Defence case started on 1 May and lasted until 4 July 2001. The Trial Chamber sat for 76 days in total.

  8. On 26 January 2001, the Trial Chamber granted leave to the Defence for a medical examination of Krnojelac.1610 On 5 February 2001, it confirmed that the medical examination would be conducted by two experts, one nominated by the Defence and one by the Prosecution.1611 The medical report of the Prosecution (confidential) was submitted on 17 March 2001 and that of the Defence on 28 June 2001.1612

  9. Further protective measures for witnesses were ordered during the trial.

  10. Forty-five Prosecution witnesses and 30 Defence witnesses were heard. In some instances, the Trial Chamber heard testimony via video conference–link. The Prosecution called one witness in rebuttal; there was no evidence in rejoinder.

  11. A third amended indictment (“Indictment”) was submitted on 25 June 2001.1613 The Accused confirmed his pleas of not guilty in relation to all the counts in the Indictment.1614

  12. On 20 June 2001, the Prosecution filed a motion to re-open its case,1615 but withdrew it on 25 June 2001.1616

  13. The closing briefs were submitted on 13 July 2001, and closing arguments were heard on 19 and 20 July 2001.